A legal representative is one who represents a citizen or organization before the law. In fact, this definition is very vague. In different situations it characterizes different faces. Rights and obligations, accordingly, will also differ in certain cases. All this will be discussed further below. And understanding the question posed is not so difficult. It is enough just to pay attention to some features of the legislation of the Russian Federation. So what can be said about the term being studied?
Definition
A legal representative is a person who, for one reason or another, represents the rights and interests of an incapacitated or limited person. Also, such people have the right to represent and protect those capable of action who, for various reasons, themselves cannot implement the assigned tasks.
In fact, a representative is a citizen who replaces other people and carries out actions in the interests of the one they replace. By the way, people are familiar with this term from birth.
The rights and responsibilities of representatives will vary depending on the situation. It has already been said that there are many defenders of interests. And in each case they will have to carry out other tasks.
Another comment on Art. 52 of the Civil Procedure Code of the Russian Federation
1. Legal representation is the representation of minor citizens or citizens recognized as incompetent or limited in legal capacity by parents, adoptive parents, guardians, trustees, and other persons on the basis of the right granted to them by federal law.
Legal representation is characterized by the following features:
— this is the representation of individuals only;
— these individuals do not have full legal capacity.
Part 1 of the commented article establishes the circle of persons - legal representatives: parents, adoptive parents, guardians, trustees, other persons to whom this right is granted by federal law (for example, the administration of an educational institution).
2. Part 2 of the commented article applies to those cases in which a citizen recognized as missing in the prescribed manner must participate.
A court decision to recognize a citizen as missing is the basis for the transfer of his property to a person with whom the guardianship and trusteeship authority enters into a trust management agreement for this property if permanent management of it is necessary. In this regard, in a case in which a citizen recognized as missing in the prescribed manner must participate, the person to whom the property of the missing person has been transferred to trust management acts as his representative.
3. Part 3 of the commented article regulates the powers of the legal representative. Legal representatives have the right to perform procedural actions with restrictions provided by law. For example, according to Art. 37 of the Civil Code, the court does not have the right to accept the refusal of a legal representative from a claim or his recognition of a claim in a property dispute to which the person under guardianship or trusteeship is a party, if there is no consent of the guardianship and trusteeship body to this in the case.
Legal representatives may entrust the conduct of a case in court to another person chosen by them as a representative.
Types of Representatives
So where and when can legal representatives meet? The fact is that this question is not so difficult. We can say that in Russia, whenever a person himself cannot participate in something, he appoints someone who will replace him.
Accordingly, most often a legal representative is a citizen who will protect the rights and interests of another person:
- in everyday life (in case of incapacity or partial capacity);
- in a court;
- educational institutions;
- meetings;
- government agencies.
Most often, it is the first two categories that are encountered in practice. But what should citizens know about representation? How is it prescribed? What rights and responsibilities will this person have?
It is important to be fully aware of all this. After all, representation is a huge responsibility. Especially in court proceedings, or when we are talking about incapacitated persons.
Commentary on Article 52 of the Code of Civil Procedure of the Russian Federation
1. Legal representation is one of the types of judicial representation. It is considered legal due to the fact that a citizen who has not reached the age of majority or who, by a court decision that has entered into legal force, is recognized as having limited legal capacity or incapacity, cannot by his own actions entrust the conduct of the case in court to a representative, for him this assignment is given by the law.
The protection of the rights and interests of children rests with their parents. Parents are the legal representatives of their children and act in defense of their rights and interests in relations with any individuals and legal entities, including in the courts, without special powers (Clause 1 of Article 64 of the RF IC). Who are legally recognized as parents?
The origin of the child from the mother (maternity) is established by the registry office on the basis of documents confirming the birth of the child by the mother in a medical institution, and in the case of the birth of a child outside a medical institution, on the basis of medical documents, testimony or other evidence.
If a child was born from persons who are married to each other, and also within 300 days from the date of dissolution of the marriage, its recognition as invalid or from the moment of death of the spouse of the child’s mother, the father of the child is recognized as the spouse (former spouse) of the mother, unless otherwise proven. The paternity of the spouse of the child's mother is certified by the record of their marriage.
If the child’s mother declares that the father of the child is not her husband (former spouse), paternity of the child is established by mutual consent of the mother and father of the child or by establishing paternity in court.
The paternity of a person who is not married to the child’s mother is established by submitting a joint application to the registry office by the father and mother of the child; in the event of the death of the mother, her recognition as incompetent, the impossibility of establishing the whereabouts of the mother, or in the event of deprivation of her parental rights - at the request of the child’s father with the consent of the guardianship and trusteeship authority, in the absence of such consent - by court decision (Article 48 of the RF IC).
Representation in adoption is based on a court decision that has entered into legal force, made in accordance with Ch. 29 Code of Civil Procedure.
Representation of minors and citizens recognized as legally incompetent by a court decision that has entered into legal force is carried out by guardians appointed by decision of the guardianship and trusteeship authorities.
Representation of minors from 14 to 18 years of age and citizens recognized as having limited legal capacity by a court decision that has entered into legal force is carried out by trustees appointed by decision of the guardianship and trusteeship authorities.
2. It should be noted that in Art. 52 of the Code of Civil Procedure of the Russian Federation does not provide a complete list of persons who may be legal representatives. The article states that other persons who are granted this right by federal law may also be legal representatives. In this regard, legal representation in court can be carried out by the manager of the real estate and valuable movable property of a citizen recognized as missing. To do this, the guardianship and trusteeship authority determines the person with whom it enters into a trust management agreement (Article 43 and Chapter 53 of the Civil Code of the Russian Federation). In relation to property transferred to trust management, the representative in court in disputes about this property will be the manager of this property, and not the guardian. The guardian or trustee retains his powers in relation to the property of the ward that has not been transferred to trust management (Article 38 of the Civil Code of the Russian Federation).
The legal representative in court may be the executor of the will, who has the right, on his own behalf, to conduct cases in court related to the execution of the will (Part 3 of Article 1135 of the Civil Code of the Russian Federation). In addition, when opening an inheritance, if the inheritance contains property that requires not only protection, but also management (an enterprise, a share in the authorized (share) capital of a business partnership or company, securities, exclusive rights, etc.), then the notary acts as the founder of trust management and enters into a trust management agreement for this property (Article 1173 of the Civil Code of the Russian Federation). In this case, the trustee will also act in court in disputes concerning entrusted property as a legal representative.
According to Art. 71 of the MCC, the captain of the ship, by virtue of his official position, is recognized as a representative of the shipowner and cargo owner in relation to transactions necessary in connection with the needs of the ship, cargo or navigation, as well as claims relating to the property entrusted to the captain of the ship, if there are no other representatives of the shipowner or cargo owner on site.
Analysis of Art. 52 of the Code of Civil Procedure of the Russian Federation makes it possible to distinguish the following subtypes of legal representation:
— parents on behalf of their minor children;
— adoptive parents on behalf of the minor children they adopted;
- guardians of young children left without parents or citizens recognized by the court as incompetent;
— trustees on behalf of minor children aged 14 to 18 years, left without parents, or citizens recognized by the court as having limited legal capacity;
- a manager of real estate and valuable property of a citizen recognized by the court as missing;
- guardian for property not transferred to trust management, belonging to a citizen declared missing by the court;
— trustee of inherited property;
- the captain of a merchant ship, if there is no representative of the shipowner or cargo owner on site.
3. Legal representatives may perform on behalf of the persons they represent all procedural actions, the right to perform which belongs to the represented persons. The scope of procedural rights of legal representatives is somewhat wider than that of voluntary representatives. Voluntary representatives cannot, without a reservation in the power of attorney, dispose on their own behalf of the material object of the dispute and the main means of protecting the right that affect the emergence, development and termination of civil procedural legal relations, i.e. dispose of discretionary rights (see commentary to Article 54).
Legal representatives, as a rule, can perform all procedural actions without a power of attorney. However, Part 3 of Art. 52 of the Code of Civil Procedure of the Russian Federation makes a reservation that legal representatives perform all procedural actions, the right to perform which belongs to the represented, with the restrictions provided by law. What are these restrictions?
For legal representatives: parents, adoptive parents, guardians and trustees - the rules of Art. 60 RF IC and Art. 37 Civil Code. So, part 2 of Art. 37 of the Civil Code of the Russian Federation stipulates that the guardian does not have the right, without the prior permission of the guardianship and trusteeship authority, to carry out, and the trustee does not have the right to consent to, transactions involving the alienation, including the exchange or donation of the ward’s property, leasing it (lease), for free use or as collateral, transactions entailing the renunciation of the rights belonging to the ward, the division of his property or the allocation of his shares, as well as any other actions entailing a decrease in the property of the ward. The procedure for managing the property of a ward is determined by Federal Law dated April 24, 2008 N 48-FZ “On guardianship and trusteeship” (as amended on July 1, 2011). In para. 3 p. 3 art. 60 of the RF IC states that when parents exercise powers to manage the child’s property, they are subject to the rules established by civil legislation regarding the disposal of the ward’s property (Article 37 of the Civil Code of the Russian Federation).
This means that in cases where legal representatives participate in civil court cases on disputes affecting the property interests of their children or wards, they cannot perform procedural actions aimed at limiting or waiving the property rights of the wards without obtaining the prior consent of the guardianship authorities and guardianship. The court, approving a settlement agreement, accepting the plaintiff’s refusal of the claim or the defendant’s recognition of the claim from the legal representative, must check whether the legal representative has permission from the guardianship and trusteeship authorities to perform these procedural actions (Part 2 of Article 39 of the Code of Civil Procedure of the Russian Federation).
The law does not stipulate in what form the guardianship and trusteeship authorities can give such consent. It seems to us that in this case a power of attorney should be issued in accordance with Art. 54 Code of Civil Procedure.
Legal representatives have the right to entrust the conduct of the case to another person of their choice and to conduct the case in court together with him. The representative, to whom the legal representative has entrusted the conduct of the case in court, acts in the process as a voluntary representative with all procedural rights belonging to the representative (see commentary to Article 54).
Appointment for incompetents
Answering the questions posed is not as simple as it seems. Much depends on the situation as a whole. Quite often it turns out that it is necessary to appoint a legal representative of an incapacitated adult citizen. Someone who could soberly assess the current situation, as well as make decisions for a trusted person. What should we do then?
There are several options. If there are candidates, they will be appointed based on personal application. The citizen writes it according to the established template, then the guardianship authorities consider the candidacy. If the established requirements are met, representation becomes possible.
When there are no candidates who could defend the interests of an incapacitated adult, the state does this. Or rather, the guardianship and trusteeship authorities. It is for this purpose that this organization was created.
From birth
It has already been said that citizens encounter legal representatives from birth. This is true. After all, minor children are incompetent. Someone must also protect and represent their interests.
And parents are the legal representatives of the child. They take responsibility for caring for and representing the interests of the minor until he reaches full legal capacity. Simply put, parents are responsible for their young children. After 18 years (or 16, if we are talking about emancipation), the need for representation and protection of the interests and freedoms of children disappears. And the citizen becomes independent according to the law.
If the child does not have parents, then the representatives are officially appointed guardians, a foster family or close relatives of the child (for example, grandparents). When the baby is left completely alone, the state will protect him, like an incapacitated adult.
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If we are talking about related representation, then it must be confirmed by relevant documents. However, if an individual turns to a representative who is not related to this person, then a separate document is drawn up, legally registered. The scope of activity of a representative of a legal entity is in a slightly different area. Yes, of course, if a legal process is open against a legal entity, then the representative in this case acts in a procedural manner. However, most often the representation of this type is used in the economic sphere. In this case, the legal representative acts as an intermediary between trading counterparties, other enterprises and organizations. The legal representative of a legal entity may itself be an organization/enterprise.
By appointment and desire
In some situations, an adequate and capable person has the right to appoint his own representative. In court, his role is often played by a lawyer. But a citizen is able to appoint someone whom he trusts to represent his personal interests.
The appointment usually takes place at the notary's office. A detailed agreement is concluded between the trustee and the principal. It spells out all the rights and responsibilities of a person who will protect other people’s interests. After the transaction is certified by a notary, the citizen will be an authorized representative. In other words, a representative.
Rights
Now a little about what the rights of the legal representative are and what obligations he undertakes. These are extremely important nuances, because representation implies the protection of someone’s interests. Taking on such responsibility, especially not by proxy, but by law, is a serious step.
A legal representative is a person who can:
- enter into transactions in order to increase the wealth of the principal;
- dispose of property to generate profit for the incapacitated;
- allow/prohibit a partially capable person to enter into transactions on his or her behalf;
- terminate agreements that harm the property or interests of citizens on whose behalf he acts.
Legal representative of an individual in court
According to current standards, subjects can act in administrative and other cases on behalf of only two parties to the proceedings: the defendant/accused and the plaintiff/victim. In this case, the legal representative of an individual does not provide a power of attorney. Speaking in defense of the interests of a citizen, he confirms his family ties or relevant powers with other documents. These include:
- Birth certificate.
- Passport.
- Decision on adoption or establishment of guardianship/trusteeship.
Responsibilities
And now a little about responsibilities. The fact is that the function of representation can only be revealed taking into account the understanding of the fact what responsibility will lie with the representative. Here, in fact, rights are also responsibilities of a citizen. Why?
The representative’s responsibilities include protecting the interests and freedoms of the citizen. That is, do everything to ensure that the trusted person is in an advantageous position. This means that it is possible to enter into and terminate transactions that will be beneficial and insignificant for the incapacitated person, respectively.
Organizations
There is also such a thing as a legal representative of an organization. Such a person must protect the interests and rights of the company. Usually this is the direct owner of the company. Legal representatives also include everyone who works for the corporation. After all, they act in the interests of the employer.
Only an officially employed person can be a legal representative. If a person is not officially employed by a given corporation, there is no representation.
As a rule, legal representatives in companies with special rights are:
- managers;
- directors;
- deputies;
- accountants;
- recruiting managers.
Office workers are also representatives of the organization, but they have fewer rights and often more responsibilities. Therefore, in the case of companies, issues of representation cannot be interpreted unambiguously.
Supporting documents
The powers of a company representative are certified by papers indicating his official position. This may be a certificate or a corresponding certificate. The legal representative of the company, if it is its director, acts in its interests without a power of attorney. A different rule is provided for an entity not acting as a director of the company. In this case, the legal representative must also have documents confirming his official position. However, a certificate and certificate will not be enough. Additionally, the rules establish the obligation for a legal representative (not the head of the company) to have a power of attorney.
Results
What conclusions can be drawn from all of the above? Legal representatives of students are parents and guardians. In general, representation is divided into several types:
- representation of incapacitated adults;
- children;
- individuals or legal entities.
Depending on a particular case, certain rights of a citizen will change. But their meaning remains the same. We are talking about protecting the interests, rights and freedoms of the trustee. The legal representative is the defender. And a kind of “carrier” of actions on behalf of a trusted person.
The legal representative of a child or an incapacitated person, especially when registering guardianship or trusteeship, assumes obligations not only for protection, but also for guardianship. That is, you will have to take full care of the trusted person.
In practice, representation is found everywhere. This is not the most difficult point to understand in the country's legal system. As has already been said, everyone is familiar with the term being studied to one degree or another.
The consent of the legal representative to carry out certain transactions is an important nuance that allows a partially capable person or a child to act on his or her own behalf. It turns out that citizens under guardianship or trusteeship can, with the permission of the representative, be responsible for some of their actions.
Rules for registering a representative
The powers of the representative are expressed in a power of attorney, which must be formalized accordingly, taking into account the current legislation. It can be certified not only by a notary, but also have the signature of the organization in which the principal works or studies, as well as a homeowners association or other institution.
Important:
A power of attorney on behalf of the organization must be signed by its director or another person who is responsible for the constituent documentation, and the company seal must also be present.
During legal proceedings, the civil representative must have documents that certify his status and powers. The right of a lawyer to represent the interests of his client is certified by a special warrant issued by a law office. The principal may assign all rights to the representative in an oral statement during the legal process. This fact will be reflected in the protocol.
By signing a power of attorney, a citizen transfers to the authorized person the right to act on his behalf in various instances and not only protect the interests of the principal, but also act in his interests to obtain profit or certain benefits.
